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every promise, made in consideration of a conveyance of property to the promisor into a breach of trust and would attach the trust, not merely to the purchase money which he agreed to pay, but to the land which he never agreed to hold for the benefit of the supposed cestui que trust.

The earliest cases upon this subject in England were decided long after the first colonial settlements in this country. Lord Eldon, in Mackreth v. Symmons, 15 Ves. 329, himself said: "It has always struck me, considering this subject, that it would have been better at once to have held that the lien should exist in no case, and the vendor should suffer the consequences of his want of caution; or to have laid down the rule the other way so distinctly that a purchaser might be able to know, without the judgment of a court, in what cases it would, and in what it would not, exist." But felt himself obliged to declare, as the result of all the authorities, that it was clear that different judges would have determined the same case differently. The most plausible foundation of the English doctrine would seem to be that justice required that the vendor should be enabled by some form of judicial process to charge the land in the hands of the vendee as security for the unpaid purchase money.

6 The doctrine of vendor's lien has never been affirmed by the supreme court of the United States except where established by the local law. In Bayley v. Greenleaf, 7 Wheat. 46, Mr. Chief Justice Marshall observes: "It is a secret, invisible trust, known only to the vendor and vendee, and to those to whom it may be communicated in fact. To the world the vendee appears to hold the estate, divested of any trust whatever, and credit is given to him in the confidence that the property is his own in equity, as well as law. A vendor relying upon this lien, ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is, in some degree, accessory to the fraud committed on the public, by an act which exhibits the vendee as the complete owner of an estate on which he claims a secret lien." Says Mr. Justice Gray, in Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449: "The decisions in the courts in favor of the doctrine, which are collected in the notes to 2 Sugden on Vendors, eighth American edition, chapter 19, suggest no reasons and afford no grounds why we should now for the first time adopt in this commonwealth a doctrine which has never been supposed by the profession to be in force here, which would introduce a new exception to the statute of frauds, which, as exgerience elsewhere has shown, tends to promote uncertainty and

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litigation, and which appears to us to be unfounded in principle, unsuitable to our condition and usages, and unnecessary to secure the just rights of the parties. If no third person has acquired any rights in the land by bona fide attachment or conveyance, the original vendor may secure payment of the debt due him for the purchase money by the usual attachment on mesne process. If any third person has acquired rights in the property, there is no reason why equity, any more than the common law, should interpose to defeat them."

Under our statutes, the vendor may obtain his judgment for the purchase money, or any part thereof, which immediately 7 becomes a lien of record upon the land sold, and under execution he may have the land sold in satisfaction of his judgment, and that, too, freed from any homestead or other claim of exemption. Thus the reason for the maintenance of the lien of the vendor is gone, and the rule has never been applicable to our condition. The adoption of the common law of England by legislative enactment in this state adopts so much of that law as is applicable to our condition, and the lien devised in favor of the vendor by the English chancellors was inapplicable to the legislation and existing conditions in this state: Ahrend v. Odiorne, 118 Mass. 261; 19 Am. Rep. 449; Simpson v. Mundee, 3 Kan. 172; Brown v. Simpson, 4 Kan. 76; Greeno v. Barnard, 18 Kan. 518; Kauffelt v. Bower, 7 Serg. & R. 64; 10 Am. Dec. 428; Hiester v. Green, 48 Pa. St. 96; 86 Am. Dec. 569; Edminster v. Higgins, 6 Neb. 265; Philbrook v. Delano, 29 Me. 410; Peck v. Culberson, 104 N. C. 425; Richards v. Arms Shingle etc. Co., 74 Mich. 57; Dean v. Dean, 6 Conn. 285; Arlin v. Brown, 44 N. H. 102; Perry v. Grant, 10 R. I. 334; Wragg v. Comptroller General, 2 Desaus. Eq. 509; Frame v. Sliter, 29 Or. 121; 54 Am. St. Rep. 781; 2 Jones on Liens, sec. 1061.

The change of venue from Clallam to King county should have been granted the defendants. The cause is reversed, with directions to the superior court to proceed in conformity to this decision.

Scott, C. J., and Dunbar, Anders, and Gordon, JJ., concur.

VENDOR AND PURCHASER-VENDOR'S LIEN.-A grantor of real estate by a deed absolute, who delivers possession to his vendee, has not an implied lien on the real estate granted for unpaid purchase money: Frame v. Sliter, 29 Or. 121; 54 Am. St. Rep. 781, and note. But the principal case, as well as that just cited, is opposed to the prevailing English and American authorities: Monographic note to Hutzler v. Phillips, 4 Am. St. Rep. 704.

ACTIONS-LOCAL AND TRANSITORY-ACTION TO ENFORCE VENDOR'S LIEN.-Local actions consist, generally, of

those instituted for the recovery of real estate or for injuries thereto, or for easements: Morris v. Missouri Pac. Ry. Co., 78 Tex. 17; 22 Am. St. Rep. 17. In general, actions founded on contract are transitory, and a suit to enforce a vendor's lien must be brought in the county where the vendee resides: Monographic note to Morris v. Missouri Pac. Ry. Co., 22 Am. St. Rep. 22, 23.

STATE V. WILLIAMS,

[18 WASHINGTON, 47.]

APPELLATE PRACTICE-CRIMINAL TRIALS.-The failure of an appellant in a criminal case, who is in jail, to file his brief within the required time may be excused, and is not ground to dismiss his appeal, when his counsel has removed from the state and he files his brief as soon as he learns that it has not been filed.

TRIAL CRIMINAL CASES-CONTINUANCE TO PROCURE WITNESS-CONSTITUTIONAL LAW.-It is error to refuse to grant a proper application for a continuance of a criminal case to procure the presence of a material witness for the accused, under a constitutional guaranty to persons prosecuted for crime, of the right to have compulsory process to compel the attendance of witnesses in their behalf.

TRIAL CRIMINAL CASES-RIGHT OF ACCUSED TO APPEAR WITHOUT MANACLES.-Unless some impelling necessity demands the restraint of a person accused of crime to secure the safety of others and his own custody, the act of compelling him to appear in manacles during his trial is not only a violation of the common law, but also a violation of a constitutional guaranty that "the accused shall have the right to appear and defend in person." TRIAL CRIMINAL CASES-COMPELLING WITNESS TO APPEAR IN MANACLES.-It is error to require a witness for a person accused of crime to appear in court in manacles during the trial, although such witness, charged with the crime jointly with the accused, has been convicted upon a separate trial.

J. F. Dillon, for the appellant.

J. W. Mathews, for the state.

48 REAVIS, J. Appellant was convicted, in the superior court of Whitman county, of the crime of burglary. The prosecuting attorney appears on behalf of the state, and moves to dismiss the appeal because appellant's brief was not filed in due time. It appears that the time within which appellant's brief ought to have been filed expired on the second day of June, 1897, and that the brief was not filed until the twenty-third day of the same month. But the counsel who appeared for the defendant at the trial had removed from the state before the brief was filed. The defendant was at the time confined in jail, and so soon as he learned that the brief was not filed within the proper time procured it to be filed. The question not being one of

the jurisdiction of the appeal, the appellant's excuse for failure to file his brief within the proper time is deemed sufficient, and the motion to dismiss denied.

The first error assigned by appellant is the refusal of the court to grant a continuance on appellant's application because of the absence of a material witness for appellant. The affidavit, while rather general in its statement of the facts, seems to be sufficient to have entitled appellant to further time. But as this question is not likely to arise upon a new trial, it is not necessary to further notice this objection than to observe that section 22, article 1, of the state constitution guarantees to persons prosecuted for crime the right to have compulsory process to compel the attendance of witnesses in their behalf, and under this constitutional guaranty the accused has the right to compulsory process to procure the physical attendance of the witness at the trial.

It appears that during the trial the defendant was brought into court and kept there in manacles, until, upon protest of defendant's counsel, the manacles were finally removed, 49 but after a considerable period of time had elapsed. And further, that during the progress of the trial and when it was very dark out of doors, at the state's request, a view of the premises, which were alleged to have been entered burglariously by the defendant, was ordered by the court, and that, in the presence of the jury, manacles were placed upon the defendant, and he was ordered by the court to go with the jury to the place of the alleged burglary, and while so manacled he went with the jury a distance of three or four blocks from the courthouse and returned to the court, when the trial proceeded and defendant was permitted to remain manacled, until, at his request, the court ordered the manacles removed. It also further appears from the record that one Bates and one Helen, who were jointly charged with the same crime as the defendant, had been theretofore tried in the court and found guilty; that at defendant's request Bates was called to testify as a witness for defendant, and when Bates was brought into the courtroom to testify, and at the request of the prosecuting attorney, Helen was brought into court to remain in the presence of the jury during the time that Bates was testifying; that after Bates had given his testimony, he and Helen were manacled together in the presence of the court and jury, and that defendant protested against Bates and Helen being allowed to remain in the courtroom in the presence of the jury manacled, and requested the court to order the manacles removed. The court refused the request.

It was the ancient rule at common law that a prisoner brought into the presence of the court for trial, upon a plea of not guilty to an indictment, was entitled to appear free of all manner of shackles or bonds, and, prior to 1722, when a prisoner was arraigned or appeared at the bar of the court to plead, he was presented without manacles or bonds, unless there was evident danger of his escape: 2 Hale's Pleas 50 of the Crown, 219; 4 Blackstone's Commentaries, 322; Layer's case, 6 St. Tr. 4th ed. by Hargrave, 230, 231, 244, 245; Waite's case, 1 Leach, 36.

In Kelyng's Pleas of the Crown, adjudged in the reign of Charles II, "it was resolved that when prisoners come to the bar to be tried, their irons ought to be taken off, in that they be not in any torture while they make their defense, be their crime never so great. And accordingly upon the arraignment and trial of Hewler and others, who were brought in irons, the court commanded their irons to be taken off." The common law of England was expressly adopted by legislative enactment at the first session of the legislative assembly of this territory, and there is no doubt that the ancient right of one accused of crime under an indictment or information to appear in court unfettered, is still preserved in all its original vigor in this state.

In State v. Kring, 64 Mo. 591, the prisoner was convicted of murder in the first degree. The plea of insanity was before the court, and the defendant had some three months before assaulted a person in open court. He was brought into the trial court manacled, and remained some time in that condition. The supreme court, in reversing the judgment of conviction, observed: "We have no doubt of the power of the criminal court, at the commencement or during the progress of a trial, to make such orders as may be necessary to secure a quiet and safe one, but the facts stated by the court in this case, as shown by the record, that the prisoner had assaulted a person in court, about three months before the term at which he was tried, would hardly authorize the court to assume that, on his trial for life, he would be guilty of similar outrages. There must be some reason, based on the conduct of the prisoner at the time of the trial, to authorize so important a right to be forfeited. When the court allows a 51 prisoner to be brought before a jury with his hands chained in irons, and refuses, on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused, as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers. Besides, the condition of the prisoner in

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